VIJAYAN Vs. SURENDRAN

JUDGEMENT

(1.) The trial court granted a decree of injunction to the plaintiffs. The defendants were restrained from trespassing into the plaint schedule properties, using those properties for thoroughfare, causing any obstruction to the construction of compound walls on the boundaries of those properties and from causing any obstruction to the peaceful possession and enjoyment of the properties by the plaintiffs. The appeal filed by the defendants against the decree was dismissed by the lower appellate court. They therefore filed the second appeal.

(2.) The case of the plaintiffs goes as follows : The first plaintiff and the husband of the second plaintiff are brothers. As per Ext A1 partition deed, plaint item 1 property was allotted to the first plaintiff and item 2 property was allotted to the husband of the second plaintiff. The first plaintiff and the husband of the second plaintiff are in possession of their respective properties. The residential property of the defendant is on the eastern side of plaint item No.1 property. The said property was sold to the defendants by one Krishnan who was using the pathway running through the property on the north to reach the public road. The defendants are also using the said pathway. The plaint item No.1 property and the property of the defendants are separated by a boundary wall. Occasionally the defendants were passing through the plaint schedule properties as permitted by the plaintiffs. The defendants have not acquired any easement to use the plaint schedule properties as a pathway.

(3.) The defendants have the following contentions: The plaintiffs have no right in plaint item 2 property. The defendants and Krishnan are using the plaint schedule properties to reach the road on the west. There is no pathway in the northern property for the defendants to use. They have been using the pathway running through the plaint schedule properties for access to their house from the road. They have acquired an easement by prescription.